Senators Move to Declassify Secret FISA Rulings

In 1973, CIA Director James Schlesinger told Senate Armed Services Chairman John Stennis that he wished to brief him on a major upcoming operation. “No, no my boy,” responded Senator Stennis. “Don’t tell me. Just go ahead and do it, but I don’t want to know.” [Church Committee Created]

LONG OVERDUE and today both Republican and Democratic senators joined together to work to end the secret FISA rulings, which almost always grant the government extensive leeway to spy on the American public. Oregon’s Senator Jeff Merkley and Senator Mike Lee (R-UT), joined by Senators Patrick Leahy (D-VT), Dean Heller (R-NV), Mark Begich (D-AK), Al Franken (D-MN), Jon Tester (D-MT), and Ron Wyden (D-OR) introduced a bill to end the “secret” law that allowed President Obama to use the NSA and PRISM to secretly invade the privacy of American citizens without our consent.

There has yet to be a ruling on the constitutionality of what’s being done in secret through the FISA rulings, with open court challenges on whether President Obama’s actions through the NSA, as well as the use of PRISM, violate the Fourth Amendment to the Constitution.

Most members of Congress, it turns out, had received the usual bland assurances from counterterrorism officials that the authority granted to the government under the Patriot Act and related laws were absolutely necessary to prevent an attack on the United States, and that domestic spying activities must remain top secret. Proposals to bring greater transparency to these activities, or to limit their scope, were vigorously opposed by the Obama administration. (The Justice Department argued in a court filing in April that there must be no public disclosure of the extent of domestic data collection.) [New York Times]

The direct challenge of the constitutionality of what the Obama administration is doing is leveled straight at the executive branch, which has been gaining power since 9/11, especially through Vice President Dick Cheney’s involvement that was a direct result of what Cheney saw during the Nixon era, impeachment and the subsequent Church Committee hearings. Cheney’s goal was to restore power back to the presidency, which has resulted in executive branch overreach, first by George W. Bush, followed by Barack Obama.

The Presidents Club seems to corrupt no matter the political party sitting in the Oval Office. So, even if the bill gets to his desk, which Senator Durbin scuttled today, President Obama won’t sign it.

“Americans deserve to know how much information about their private communications the government believes it’s allowed to take under the law,” Merkley said. “There is plenty of room to have this debate without compromising our surveillance sources or methods or tipping our hand to our enemies. We can’t have a serious debate about how much surveillance of Americans’ communications should be permitted without ending secret law.”

“This bipartisan amendment establishes a cautious and reasonable process for declassification consistent with the rule of law,” Lee said. “It will help ensure that the government makes sensitive decisions related to surveillance by applying legal standards that are known to the public. Particularly where our civil liberties are at stake, we must demand no less of our government.”

“For years, I have pressed for information about the business records program authorized by the PATRIOT Act to be declassified,” Leahy said. “I am proud to join in this bipartisan legislative effort to increase openness and transparency so that we can shed further light on the business records program authorized by this law.”

“Of course, ensuring Americans’ safety is one of our government’s most important responsibilities, but there is a careful balance between protecting Americans and honoring the Fourth Amendment,” Heller said. “This legislation is a measured approach that will bring more transparency to the FISA court and respect the American people’s right to know how and when the government may be accessing their personal information.”

“I remain deeply concerned over the reports of the government obtaining millions of Americans phone records. I’m pleased to co-sponsor this bill because we need greater transparency and accountability in our government to prevent overreach and to protect against an invasion of Americans’ privacy,” Begich said. “In the coming weeks I will continue to push for a better balance between protecting our safety and protecting our Constitutional rights.”

“There needs to be a balance between Americans’ right to privacy and the government’s responsibility to keep Americans safe,” Franken said. “And ensuring that the court overseeing surveillance programs is as transparent as possible is a key step toward reaching that balance. This legislation will help make the process more open to the American people and to the people of Minnesota.”

“We must find the right balance between protecting our nation and protecting the civil liberties that make America the greatest country in the world,” Tester said. “This bill will help Congress do a better job securing that balance, while maintaining the rights guaranteed to all Americans in the Fourth Amendment.”

“It is impossible for the American people to have an informed public debate about laws that are interpreted, enforced, and adjudicated in complete secrecy,” Wyden said. “When talking about the laws governing Intelligence operations, the process has little to no transparency. Declassifying FISA Court opinions in a form that does not put sources and methods at risk will give the American people insight into what government officials believe the law allows them to do.”

The Foreign Intelligence Surveillance Court (FISC) is a special U.S. federal court tasked with authorizing requests for surveillance both inside and outside the United States. Because of the sensitive nature of these requests, the FISC is a “secret court.” The FISC rulings, orders, and other deliberations are highly classified. The Court’s rulings can include substantive interpretations of the law that could be quite different from a plain reading of the law passed by Congress, and such interpretations determine the extent of the government’s surveillance authority. There is certainly information included in the Court’s orders and rulings that is necessarily classified, related to the sources and methods of collection used by intelligence agencies. However, the substantive legal interpretations of what the FISC says the law means should be made public.

This legislation would accommodate national security concerns. If the Attorney General determines that a Court opinion cannot be declassified without undermining national security interests, then the Attorney General can declassify a summary of the opinion. If the Attorney General determines that even a summary of an opinion would undermine national security, the Attorney General is required to provide a report to Congress describing the process to be implemented to declassify FISA Court opinions including an estimate of the number of opinions that will be declassified and the number that are expected to be withheld because of national security concerns.

Last December, Senator Merkley offered this bill as an amendment to the reauthorization of the FISA Amendments Act of 2008. The amendment would have covered declassification of rulings related to the provisions used to authorize the controversial Verizon telephone records metadata collection and the PRISM program collecting information from tech companies, both of which were disclosed last week. Thirty-seven senators supported the effort.

On Saturday, the New York Times editorial board endorsed the Senators’ efforts to declassify the opinions, saying, “Congress should “¦ require the court to be more public about its decisions.” The bill is also endorsed by the American Association of Law Libraries, The Constitution Project, the American Civil Liberties Union, the Project on Government Oversight (POGO), CREDO Mobile and OpenTheGovernment.org.

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“It is impossible for the American people to have an informed public debate about laws that are interpreted, enforced, and adjudicated in complete secrecy,” Wyden said. Amazing how many folks don’t seem to get this. There’s such an amazing tendency among the public to trust that all this surveillance is being done to protect them, when there’s absolutely no evidence that this is the case. As I wrote in that Twitter conversation I linked, there’s a drunkard’s walk logic to all of this. Sooner or later, we will end up in the ditch of corrupt and totalitarian government. It’s pretty… Read more »

“I would say, DNI James Clapper, whom I believe directly lied in hearings.” I find it hard to believe he didn’t lie. According to this WaPo story based on a leak from the Obama Administration, a number of congresspeople were briefed on the NSA programs before that hearing (which was on Mar. 12, 2013). Either Wyden, a colleague, or a staffer probably heard something that prompted that question. Plus, as Marcy Wheeler notes, the question should not have been a surprise. The NSA was collecting data on a large number of Americans at the time, and Clapper denied that they… Read more »